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Are prosecutors persisting with 'failed case' against Oscar Pistorius?

Lawyers for Olympic athlete Oscar Pistorius say prosecutors are persisting with a "failed case" by taking an appeal against Pistorius' acquittal for murder to South Africa's Supreme Court.

Themba Hadebe/AP/File

In this Friday, Oct. 17, 2014 file photo, Oscar Pistorius is escorted by police officers as he leaves the high court in Pretoria, South Africa. Pistorius' lawyers say prosecutors are persisting with a "failed case" by appealing the double-amputee athlete's acquittal for murder at South Africa's Supreme Court. Pistorius' lawyers made the argument in papers filed Wednesday, Sept. 16, 2015 to the Supreme Court, meeting Thursday's deadline to respond.

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September 16, 2015

By Gerald ImrayAssociated Press

CAPE TOWN, South Africa

Prosecutors are persisting with a "failed case" by taking an appeal against Oscar Pistorius' acquittal for murder to South Africa's Supreme Court, the athlete's lawyers said Wednesday.

Pistorius' lawyers met a Thursday deadline to respond to papers filed last month by prosecutors, who want a panel of judges at the Supreme Court to review Pistorius' case and convict him of murder for killing girlfriend Reeva Steenkamp in 2013.

Pistorius, the double-amputee Olympic runner, was acquitted of murder at the end of his seven-month trial last year and was instead convicted of a lesser charge comparable to manslaughter for shooting Steenkamp through a toilet door in his home.

His case will now go to the Supreme Court of Appeal in November.

There, the judges have the power to do one of three things: Reject the prosecution appeal and rule Pistorius' acquittal for murder was correct, order a re-trial, or convict him of murder themselves.

A murder conviction would call for a minimum of 15 years in prison for Pistorius, who made history in 2012 by being the first amputee to run at the Olympics.

The 28-year-old Pistorius is currently serving his five-year sentence for manslaughter in a prison in central Pretoria, the capital.

In Wednesday's papers, Pistorius' lawyers argued prosecutors were wrong to challenge the original verdict, and were using the appeal to try again with a murder case that had already been rejected by Judge Thokozile Masipa.

Prosecutors were given permission to appeal Masipa's verdict, and they say she misinterpreted parts of the law and ignored important evidence.

The prosecution appeal hinges on a part of South African law known as "dolus eventualis," where someone can be found guilty of murder with lesser intent if they acted with the knowledge that a person might be killed because of their actions, but went ahead anyway. Prosecutors argued Pistorius should be convicted of murder on that basis after firing four shots into a small toilet cubicle, hitting Steenkamp in the head, arm and hip.

Prosecutors had said Pistorius shot Steenkamp intentionally after a fight. He testified he mistook her for a dangerous intruder in the pre-dawn hours of Valentine's Day 2013 and shot in self-defense.

Pistorius' defense raised the prospect of a re-trial, but only as a last resort, they said. The lawyers said that if the Supreme Court agreed with the prosecution, it should only order a re-trial and not upgrade his conviction to murder itself.

But the defense also argued a re-trial would be unfair on Pistorius because, for one, he is broke from his long and expensive first trial and wouldn't be able to afford another court battle.

Pistorius' "financial ability" to pay for a new trial "is non-existent," his lawyers said in a stark assessment of the former star athlete's finances.

Also, because of the high profile of Pistorius' case, a re-trial would be prejudiced because witnesses would have been affected by the media coverage, his lawyers argued.

An exact date for the Supreme Court appeal hasn't yet been announced. A panel of either three or five judges will hear arguments from the prosecution and the defense and make its decision through a simple 2-1 or 3-2 majority.

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